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Class action law raises jurisdictional issues

Many Wisconsin legal observers familiar with the federal Class Action Fairness Act of 2005 seem to agree that it is likely to divert some class actions from state courts into federal courts. But recent interviews reveal a divide in their assessments of whether that would be a generally positive development, and if so, for whom. Bernard T. McCartan, who is ...

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Supreme Court lowers burden for punitive damages

“This court will not insert the phrase ‘intent to cause injury’ into the statute. To do so here would alter the focus of the statute and jettison the legislative intent.” Hon. Ann Walsh Bradley Wisconsin Supreme Court In two cases decided March 18, the Wisconsin Supreme Court set forth standards for when punitive damages may be awarded pursuant to sec. ...

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Punitive Damages Case Analysis

Although the majority states that its standard is higher than the previous common law standard, and that circuit courts must act as "gatekeepers" — only sending punitive damage questions to juries where this heightened standard is met — the standard will prove difficult to apply. As the majority noted, the words "intentional" and "disregard" do not easily combine. The language, ...

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Labor Logic

Department of Labor issues new military leave posting requirement

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Suspect can't invoke Miranda before arrest

“A noncustodial interrogation normally fails to create circumstances that compel self-incrimination which is why Miranda does not apply in those situations.” Hon. Michael W. Hoover Wisconsin Court of Appeals A suspect’s invocation of Miranda does not render his subsequent statements inadmissible, if he was not in custody at the time of the invocation, the Wisconsin Court of Appeals held on ...

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Miranda Case Analysis

The facts of this particular case make it a poor vehicle for further review in the Supreme Court, but the holding is sufficiently problematic that ultimate review of the issue would be beneficial. First, it is not even certain that Hassel’s invocation of the right to remain silent on May 7 was unequivocal. Hassel stated, "I can’t talk to you," ...

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No breach where plea agreement was silent

“If we allow the State to bargain for a recommendation of a specific sentence and then let the State unilaterally recommend a consecutive sentence over and above the sentence recommendation mutually assented to, we are permitting the State to change the rules of the game.” Hon. Richard S. Brown in dissent The Wisconsin Court of Appeals held on March 9 ...

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Plea Agreement Case Analysis

As unfortunate as the decision is for Bowers, whose plea agreement was plainly breached by the State in this case, defendants in future cases may nevertheless be able to avoid the same result, even when identical facts are present. Both the dissent and majority opinion supply authority for doing so. Footnote 5 of Judge Brown’s dissent states: "The clear import ...

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Falun Gong membership grounds for asylum

“The number of followers of Falun Gong in China is estimated to be in the tens of millions, all of them subject to persecution.” Hon. Richard A. Posner Seventh Circuit Membership in Falun Gong is a basis for fear of future persecution if deported to China, the Seventh Circuit held on March 9. Zhen Li Iao arrived in the United ...

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Compelled statements inadmissible under Ch. 980

“We cannot readily articulate a rationale for excluding a statement in a ch. 980 trial because it would be incriminating in a future, hypothetical criminal proceeding. … We believe that courts and litigants would benefit from a Supreme Court review of our analysis.” Hon. Margaret Vergeront Wisconsin Court of Appeals A probationer’s statement to his agent is inadmissible in a ...

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Chapter 980 Case Analysis

Although the court remanded this case to the circuit court for factfinding to determine whether Mark’s statements were "compelled," it is unclear what, if any, relevant facts it expects to be developed on the record, that were not already available to the court of appeals. The facts are as follows: Mark was on parole; the rules of parole require him ...

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3 State Bar candidates weigh in on issues

Are Wisconsin’s 21,000 lawyers ready for a departure from the state’s integrated bar association? Madison lawyer Steven A. Levine thinks so, and that’s why he threw his hat in the ring for the president-elect race of the State Bar of Wisconsin. Levine, of the Wisconsin Public Service Commission, has exercised his rights under Article II of State Bar bylaws, which ...

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Sentences should not be allocated between enhancers and base offense

“The court should … explain … why it is imposing the overall sentence that it is, without allocating any portions of the confinement imposed among the base offense and enhancers. Such allocation is not required and … may lead to unnecessary confusion or claims of error.” Hon. David G. Deininger Wisconsin Court of Appeals The Wisconsin Court of Appeals on ...

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TIS Case Analysis

In State v. Cole, 2003 WI 59, 262 Wis.2d 167, 663 N.W.2d 700, the Wisconsin Supreme Court wrote, when faced with similar mathematical difficulties presented by TIS-I: "both sides present reasonable arguments in support of their respective interpretations. On the other hand, however, neither party’s interpretations and arguments are without flaws. Each party’s position is vulnerable to criticism and might ...

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7th Circuit issues plain error standard for Booker

“The only practical way (and it happens also to be the shortest, the easiest, the quickest, and the surest way) to determine whether the kind of plain error argued in these cases has actually occurred is to ask the district judge.” Hon. Richard A. Posner Seventh Circuit The Seventh Circuit on Feb. 25 announced its standard for application of the ...

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Plain Error Case Analysis

In adopting the “limited remand” approach to plain error, the Seventh Circuit takes the middle ground in what has become a three-way division among the Circuits. The Second Circuit is largely in accord with the Seventh Circuit. U.S. v. Crosby, 2005 WL 240916 (2d Cir. Feb. 2, 2005). The court in Lee listed only three instances in which there would ...

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High court reaffirms ‘legal residuum rule’

“Fairness requires that in the face of contrary in-person testimony, if the Group Insurance Board seeks to terminate a claimant’s benefits, it should be required to corroborate hearsay evidence if that evidence is to form the sole basis for its decision." Hon. Shirley S. Abrahamson Wisconsin Supreme Court The Wisconsin Supreme Court on Feb. 23 held that uncorroborated written hearsay ...

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Legal Residuum Case Analysis

A question raised by this decision is whether the results in future cases can be changed by reframing the issue. Section 227.57(6) provides, “the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency’s action or remand the case ...

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Three candidates vie for State Bar’s top seat

"Grab your briefcase and hang on for the ride." So says Madison’s Steven A. Levine, associate general counsel with the Public Service Commission of Wisconsin, who has entered the race for State Bar president-elect. In recent years, typically two candidates, selected by a nominating committee and approved by the State Bar of Wisconsin Board of Governors, are on the ballot ...

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Law firm partner not an employee

The Seventh Circuit held on Feb. 15 that a partner in a law firm with only three other general partners is an employer, not an employee, under the civil rights laws. In 1989, James D. Solon joined the law firm of Adler, Kaplan & Begy in Illinois, as a partner. The partnership agreement named Solon as one of eight general ...

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Law Firm Case Analysis

As a case involving whether a partner in a law firm is an employer or employee, the decision has important ramifications beyond employment law. It is noteworthy that, although the court purports to apply the six-factor test of Clackamas Gastroenterology Assocs. v. Wells, 538 U.S. 440 (2003), the court makes no explicit reference to any of the factors in determining ...

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Company exempt from WARN

The Worker Adjustment and Retraining Notification Act (WARN Act) was not violated when Arthur Andersen laid off employees after it was indicted, the Seventh Circuit held on Feb. 11. Arthur Andersen LLP had 27,000 employees in 80 locations around the country. In November 2001, Andersen received a subpoena from the SEC requesting documents related to one of its clients, Enron ...

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WARN ACT Case Analysis

The decision’s precedential value is undercut, because only half of the analysis will remain applicable to future cases. On the issue of causation, the court concluded, "Andersen could not indict itself. Andersen was not like a company that secretly plotted for a long time to move its operation to Mexico and closed up shop without any notice to its employees." ...

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